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Women's Swim and Dive Title IX Lawsuit gains crucial support in appeal

May 28, 2021
A Michigan State swimmer concentrates before the women's 200 butterfly. Michigan State hosted the swim and dive meet against Oakland on January 18.
A Michigan State swimmer concentrates before the women's 200 butterfly. Michigan State hosted the swim and dive meet against Oakland on January 18. —
Photo by Lauren DeMay | The State News

The fight to reinstate Michigan State Swim & Dive gained a massive boost in support from the U.S. Department of Education and Department of Justice in the pending Title IX case against the university. 

The women of the Michigan State women’s swimming and diving team filed a Title IX lawsuit against the University to appeal the district court’s denial of the preliminary injunction that would keep the women’s team in place during the duration of the case.

The appeal was filed to the U.S. Sixth Circuit of Appeals on May 24, which is asking the higher court to re-examine the facts of the case and make another ruling. The preliminary injunction was filed Jan. 15 along with the Title IX case and was denied by the district court on Feb. 19.

According to the appellant brief, the injunction was denied because the court ruled that it did not believe the women had demonstrated a strong likelihood of success based on the merits of the injunction.

“This Court balances the same four factors on appeal when reviewing the district court’s denial of the preliminary injunction: '(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction,'” the brief states. “The Student Athletes have met their burden under these factors and the District Court erred in denying the Student Athletes’ motion for preliminary injunction.”

The Title IX lawsuit alleges that by cutting the women’s swimming and diving team, Michigan State is in violation of Title IX laws for public universities on three fronts. The plaintiffs argue in the lawsuit that there are three violations: MSU is failing to provide substantial proportionality for women athletically, the university has a history of expanding opportunities for women and that MSU is failing to accommodate the interest and ability of female athletes.

Substantial proportionality means that the opportunities for men and women in athletics are equal to the percentage of men and women in the overall student population. The lawsuit alleges that MSU would be in violation of not providing ample opportunities for women compared to the overall student population if the women’s swimming and diving team is eliminated. 

These arguments are based on the U.S. Department of Justice’s Office for Civil Rights’, or OCR, three-prong test to measure a university’s compliance with Title IX statutes. The district court ruled that MSU was not in violation of failing to provide substantial proportionality for women on campus and denied the preliminary injunction.

“We are very optimistic that the Court of Appeals will look at this and do the right thing and reinstate the women's swimming and diving team,” Lori Bullock, one of the attorneys representing the women, said. “Obviously, we never know what a court is going to do, but we appealed because we believe that the district court erred.”

The OCR and Department of Education and a collection of public interest organizations spearheaded by the National Women’s Law Center, or NWLC, and Legal Aid at Work, or LAAW also filed two amicus briefs May 26 in support of the appeal.

An amicus brief is a legal document filed by people called amicus curiae, or “friends of the court,” who are outside of the case and provide relevant information that could be pertinent to the case and interpretation of the law. 

“So, a lot of what an amicus is, is, takes it outside of the scope of exactly what's happening at MSU and provides the court with information just more in general how this either affects the rest of the country or how it should be interpreted in just a broad sense of this is the law,” Bullock said.

The amicus brief filed by the OCR and Department of Education focuses on the district court’s interpretation of the three-prong test to determine whether MSU was in violation of Title IX based on substantial proportionality. 

The amicus brief argues that the court misapplied the first prong of the three-prong test in respect to substantial proportionality in three ways that resulted in the denial of the preliminary injunction.

The brief states that the court incorrectly relied on percentage size rather than absolute numbers to determine disparity between men and women and that a school would not be liable for Title IX violations with a disparity of 2% or less. The brief also claims the court was incorrect in using average women’s team size to determine the disparity.

According to the brief, “Because the district court failed to undertake the correct analysis to determine whether MSU’s participation gap could sustain a viable team, and misinterpreted prong one of the Three-Part Test in several significant respects, this Court should correct the district court’s error and remand for further proceedings consistent with this Court’s opinion.”

The second amicus brief that was filed by the NWLC and LAAW collectively focuses on the national impact of the case in regards to women’s sports and gender equality and has the support of 25 public interest organizations such as the Human Rights Campaign and the Women’s Sports Foundation.

The brief makes the same claims that the district court was wrong in its original denial of the preliminary injunction and misapplied the three-prong OCR Title IX test to come to that conclusion. The brief argues that in doing this, the court is undermining the success of female athletes across the country by limiting the number of women’s teams and increasing the number of women on each team that remains. 

“This Court should reject the district court’s approach; otherwise, schools could avoid liability by stacking their athletics programs with fewer but ever-larger women’s teams, denying women meaningful participation opportunities,” the brief states.

The support from the amicus briefs has made the women more optimistic about the appeal, Bullock said. 

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“We're hopeful that this information provides the Court of Appeals with the information that they need to fully assess our claims on appeal,” Bullock said. “And we're hopeful.”


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